Washington Regulators Ban Cannabis-Infused Candies

By April 3, 2019, Washington retail marijuana stores will no longer carry infused hard candies, tarts, fruit chews, jellies, and gummies due to a newly enacted ban on the production said products. The announcement came from the Washington State Liquor and Cannabis Board (“LCB”) during a recent meeting. A PowerPoint presentation from the meeting is available here.

The LCB reevaluated its stance on marijuana candies finding that infused candies are “especially appealing to children.” The LCB’s regulations (WAC 314-55-077(7)) prohibit processors from creating products that appeal to children. The LCB claims that its new policy is intended to comply with this provision.

Going forward, the following products are prohibited:

• Candy – hard candy (of any style, shape or size) and tarts.
• Fruit chews, jellies and all gummy type products.

The new LCB policy will also impact other products. The following infused products are allowed “with limitation on appearance”:

• Chocolate
• Cookies
• Caramels
• Mints

What does “limitation on appearance” mean? The LCB provides some examples:

• Chocolate in its original color and not coated, dipped, sprayed or painted with any type of color.
• Chocolate in the shape of a bar or ball. No shape or design that is especially appealing to children.
• Caramel and fruit caramels. No color, shape or design that is especially appealing to children.
• Cookies that do not contain sprinkles or frosting.
• Mints that have no color (white or white with small color fleck to represent the flavor only).

Finally, the LCB lists the following “allowable infused products”:

• Beverages
• Baked Goods
• Capsules
• Chips and Crackers
• Sauces and Spices
• Tinctured

Though the LCB has categorized the above products, it still will consider whether any product is especially appealing to children. In making that determination, the LCB examines the appearance, the similarity to products that are marketed towards children, and color. Our Seattle office knows all too well how difficult it can be to determine exactly what the LCB will approve, given these highly subjective criteria.

If you are a Washington marijuana processor, you may have seen this coming. The LCB has been pushing back on many products based on the “especially appealing to children” limitation, signaling that more stringent policies were on the horizon. The LCB now recommends that processors cease all production of hard candy, tarts, fruit chews, colorful chocolates, jellies, and gummies, because they will not be approved. Licensees are allowed to sell their products until inventory is depleted or April 3, 2019, whichever comes first.

This change will have a significant impact on processors that have built brand loyalty by creating suddenly outlawed infused candies. Consumers will also have fewer options. We anticipate that the industry will push back on this ruling, especially because the LCB has claimed that this is to address the public health risk of children accessing infused marijuana candies, but has not provided evidence that kids are, in fact, getting their hands on these products.

The LCB will host a webinar to answer questions on marijuana infused edibles on October 16, 2018. The link will be available on the agency’s website.